Advantages and Disadvantages of Written and Unwritten Constitutions

Only available on StudyMode
  • Download(s): 12964
  • Published: March 30, 2013
Read full document
Text Preview
Identify and discuss the advantages and disadvantages of written and unwritten types of constitutions.

A constitution is a body of fundamental principles or established precedents according to which a state or organization is governed, especially when embodying the rights of subjects. A constitution sets out how all the elements of Government are organized and how power is carved up among different political units. It contains rules about what power is wielded, who wields it and over whom it is wielded in the governing of a country. As a kind of deal or contract between those in power and those who are subjected to this power, a constitution defines the rights and duties of citizens and the devices that keep those in power in check. A constitution is the supreme law of the land in any given country and no other law may conflict with it, nor may the government do anything that violates it. Constitutions exist as national and regional. Two types of national constitutions that exist are the written (codified) constitution and the unwritten (uncodified) constitution. Countries like the United Kingdom, Israel and New Zealand possess the unwritten constitution while countries like India, United States and states of the Commonwealth Caribbean possess the written constitution. A written constitution is one that is contained in a single document which is the one source of constitutional law in a state. Written constitutions are often the product of some dramatic political change such as a revolution as was the case of America and the gaining of independence by the Commonwealth Caribbean countries from Britain. The process by which a country adopts a constitution is closely tied to the historical and political context driving these fundamental changes. The legitimacy and longevity of codified constitutions have often been tied to the process by which they were initially adopted. States that have codified constitutions normally give the constitution supremacy over ordinary statute law. Unwritten constitutions are the product of an ‘evolution’ of laws and conventions over centuries. There are advantages and disadvantages to both types of constitutions.

Major principle and key constitutional provisions are entrenched, safeguarding them from intervention by the Government of the day. An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws. The strongest level of entrenchment exist in those constitutions that state that some of the most fundamental principles are absolute, i.e. certain articles may not be amended under any circumstances. For example the German Federal Constitution which states that human dignity on the basis of human rights is protected. The fundamental rights or the right to life are outlined. The Bill of Rights are clearly outlines which deals with rights to equality, human dignity, life, privacy, freedom of speech, freedom of religion and expression, labour relations, education, children and legal process. A Bill of Rights place limitations on the Government and creates an area of freedom for the people.

Individual liberty is more securely protected and authorative Government is kept at bay. The Government is ‘straight jacketed’, so absolute power cannot be the norm of the government. The Constitution is supreme over ordinary statute law. If there is any conflict between a legal statute and the constitution, all or part of the statute are declared ultra vires by a court, and struck down as unconstitutional. The constitution of the United States had many unforeseen shortcomings which the Founding Fathers could not have envisioned over two hundred years ago. These had to be patched through amendments, but have been honoured by Governments, and no dictatorship has been able to take hold of it. The opposite effect of this was seen with the constitution of Argentina written many years after in 1853 and was a better document, but...
tracking img